Rajasthan Speaker Files Fresh SLP Against HC Order on Rebel MLAs' Disqualification

The court can only interfere once the speaker has made a decision on the matter, C.P. Joshi has argued.

Jaipur: Rajasthan assembly speaker C.P. Joshi on Wednesday filed a special leave petition (SLP) in the Supreme Court against the Rajasthan high court order passed on July 24. A division bench of comprising Chief Justice Indrajit Mahanty and Justice Prakash Gupta had restrained the speaker from conducting disqualification proceedings against 19 Congress rebel MLAs including former deputy chief minister Sachin Pilot.

The SLP, filed by advocate-on-record Sunil Fernandes, raised the several grounds before the apex court. First, he argued that as per the Kihoto Hollohan judgement, the court can interfere only when the speaker has given a final decision in matters dealing with disqualification, that too on limited grounds.

In the case of Rajasthan, since the speaker had not yet decided on the disqualification petition moved by the Ashok Gehlot government against the rebel MLAs, and had merely given them notice – under Rule 7(4) of the Rajasthan Assembly Disqualification Rules, 1989 – to submit their responses, the SLP stated that the prayers of these MLAs in their petition before the high court wanted to restrain an action that had not yet occurred.

The SLP further stated that the notice issued by the speaker is a proceeding of the House, protected from judicial interference under Article 212 of the constitution. “Issuing notice is a Proceeding in the House under Para 6(2) of the Tenth Schedule and is not subject to judicial review anterior to decision itself. Article 212 clearly bars any such challenge.”

The rebel MLAs, in their petition, had asked the high court to declare paragraph 2[1][a] of the tenth schedule, which deals with disqualification on the grounds that a member has voluntarily given up membership of their original political party, to be violative of the basic structure of the constitution. In its July 24 order, the high court agreed to consider this plea.

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Raising this, the SLP added that the high court, while acting in “gross judicial indiscipline” and “judicial impropriety”, was reopening settled issues.

It submitted that the high court could not entertain a challenge to the disqualification at the stage when members of the House are served notices by the speaker to seek their response. “The person aggrieved has to face the inquiry or proceedings and it is only the final determination which is amendable to judicial review,” reads the SLP.

How did it all start?

On July 14, the Gehlot government, through chief whip Mahesh Joshi, submitted a disqualification petition against rebel Congress MLAs to speaker C.P. Joshi. The petition listed reasons such as missing Congress Legislature Party (CLP) meetings, conspiring to topple the elected government in Rajasthan, hostile conduct and remaining inaccessible.

The state assembly secretariat issued notices to all of the rebels, asking them to send their written submissions within three days (by July 17), failing which an ex-parte action will be sought against them.

The rebel MLAs who were served this notice moved to high court, primarily stating that failure to attend meetings of the CLP, listed as a reason for disqualification in the state government’s petition, is not a valid ground for disqualification.

The Rajasthan high court initially barred the speaker from seeking any action against the rebel MLAs till July 21. On July 21, the court said it would announce its verdict on July 24, requesting the speaker to defer action against the rebel MLAs till then.

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On July 22, Joshi moved an SLP against the Rajasthan high court’s July 21 order that restrained Joshi from “calling replies and conducting disqualification proceedings” against 19 rebel Congress MLAs including Sachin Pilot till July 24.

Hearing the SLP, the Supreme Court didn’t stay the high court proceedings. On July 24, the high court ordered the speaker not to conduct disqualification proceedings against the rebel MLAs. Following this, Joshi withdrew his petition to file a fresh SLP.

Lawyer Kapil Sibal informed that because the apex court didn’t stay the high court order as prayed in the previous SLP, the high court proceeded to pass a detailed order on July 24. Due to this, the subject matter of the previous SLP “merged” with the high court’s subsequent order of July 24, and made that SLP infructuous.

On Wednesday, Joshi filed a fresh SLP against the July 24 high court order.